Decision  John T. Foley, Sr. v. Exxon Mobil Service Fleet Operations

Date:	07/14/2008
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 029903-04
Location:	Boston

• Employee: John T. Foley, Sr.
• Employer: Exxon Mobil Service Fleet Operations
• Insurer: Petroleum Casualty Company

HORAN, J. The employee appeals from a decision denying the application of the presumption of incapacity in § 8(2) to his claim for weekly benefits for the period following his termination from work.¹ We affirm the decision.

¹ General Laws c. 152, § 8(2), provides, in pertinent part:

(2) An insurer paying weekly compensation benefits shall not modify or discontinue such payments except in the following situations:

                                                           . . .

(d) the insurer has possession of (i) a medical report from the treating physician, or, if an impartial medical examiner has made a report pursuant to section eleven A or subsection (4) of this section, the report of such examiner, and either of such reports indicates that the employee is capable of return to the job held at the time of injury, or other suitable job pursuant to section thirty-five D consistent with the employee's physical and mental condition as reported by said physician and (ii) a written report from the person employing said employee at the time of the injury indicating that such a suitable job is open and has been made available, and remains open to the employee; provided, however, that if due, compensation shall be paid under section thirty-five; provided, further, that if such employee accepts said employment subsequent to a modification or termination pursuant to this paragraph, compensation shall be reinstated at the prior rate if the employee . . . should be terminated by the employer because of the employee's physical or mental incapacity to perform the duties required by the job;

                                                         . . .

For purposes of clause (d) of this section, any termination of an employee within one year of resumption of work with his prior employer will be presumed to be for the reason that the employee was physically or mentally incapable of performing the duties required by the job or that the job was unsuitable for the employee, unless the insurer demonstrates the contrary by a preponderance of evidence at a subsequent proceeding.